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Restricting Expressive Activities in CA Shopping Centers

By Mindy Wolin Sherman and Sharona Toobian

In December 2012, the California Supreme Court decided a case that attempted to clarify the protective reach and interaction of the California Constitution and California labor statutes on expressive activities on privately owned California shopping centers. This article provides owners and their counsel with suggested guidelines for the restriction of expressive activities, and illustrates the types of shopping center rules that will more likely be upheld by California courts. While this article specifically addresses the interpretation of California statutes and the California Constitution, it should be noted that many jurisdictions look to California interpretations as a starting point on freedom of speech issues.

A key inquiry is whether the expressive activity is labor-related speech, which is provided greater protection than other expressive activities. California statutes protect labor-related speech in nearly all areas of a privately owned shopping center. Other expressive activities in public forum areas of the shopping center (except for certain prohibited speech, including misleading commercial speech, extortion and threats of serious bodily harm) are protected by the California Constitution's liberty of speech provision. Regardless of the type of expressive activity, labor-related or otherwise, owners should heed certain considerations in drafting and enforcing shopping center rules.

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